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Saturday, July 30, 2016

Will the Massachusetts legislature punt on due process and separation of powers?

Earlier this month, Massachusetts Attorney General Maura Healey implemented a sweeping new revision of the Bay State's regulation of firearms. Supposedly aimed at cracking down on so-called "copycat" assault weapons, these new rules are actually incredibly vague and have caused a host of headaches for local businesses and private citizens alike. It's not clear exactly which guns will be banned under Healey's new rules, and this massive uncertainty has had a number of unforeseen outcomes (including causing a spike in gun sales). Moreover, her sweeping ruling could open the door to banning semiautomatic firearms in general.

Healey's decision has large (and potentially unconstitutional) implications for the Second Amendment, but it also has a bearing on the stakes of due process. The Massachusetts state legislature did not pass any law giving her new powers; instead, she simply invented them herself. This ruling, then, sets a precedent that goes far beyond the Second Amendment. Under the Healey precedent, an attorney general can declare actions legal or illegal at a whim.

Because of the significant constitutional implications of Healey's ruling, voices across the Massachusetts political spectrum have risen up against her decision. A bipartisan coalition of state legislators wrote a letter condemning Healey's decision. Charlie Baker, the Commonwealth's popular Republican governor, has also raised concerns about it.

Massachusetts State Senate Minority Leader Bruce Tarr has authored a bill, the "Act to Protect Due Process," that would roll back Healey's ruling and make clear that the state attorney general does not have the authority to invent new gun regulations. Tarr's bill would also ensure that individuals who bought guns legally cannot be later classified as criminals for owning these legally purchased guns.

Massachusetts is currently in the last few days of its legislative session, and some Democratic leaders in the legislature (both the lower house and the Senate have strong Democratic majorities) have resisted bringing this bill up for a vote. Perhaps desire to avoid a vote on a due-process bill comes from a wish to spare Healey political embarrassment and to ensure that elected representatives can avoid being on the record about Healey's decision.

The Speaker of the legislature, Bob DeLeo, has refused to bring up a due-process bill because he argues that there isn't enough time to vote on the bill. DeLeo's decision sends a signal to the executive branch that, if it wants to expand its authority, it should do so near the end of a legislative sessionn.

Now, attention turns to Stan Rosenberg, the head of the state senate. Rosenberg has long campaigned on the idea of transparency in government. Rosenberg faces a tough decision: live up to those principles and allow a vote, or scuttle discussion on a bill that defends the ideals of due process and separation of powers. Opposition to Healey's decision is not a partisan issue, but partisanship might help block a vote on a bill to repeal her decision.